Nagamootoo regulating GECOM’s recount unconstitutional – fmr AG

…as Commission yet to announce starting date

The Guyana Elections Commission (GECOM) is yet to announce a date for the beginning of the recount of votes cast at the March 2, General and Regional Elections, saying that it is now awaiting the finalising of logistics for the arrival of the team of observers to be fielded by the Caribbean Community (Caricom) before announcing a date. In a statement on Tuesday, the Commission explained the decision to have the Caricom officials not be quarantined, but instead tested for the coronavirus disease (COVID-19), before arriving in the country for the recount.

The Commission in its statement said it is against this backdrop, once all the details have been finalised in relation to this matter, that a commencement date for the national recount would be announced and that it “remains resolute at ensuring the recount exercise commences within the shortest possible time and concludes in an expeditious, credible and transparent manner.”

Unconstitutional
The decision by the Commission to have its

operations be influenced by the COVID-19 Task Force has since come in for stinging rebuke.
Former Attorney General and Legal Affairs Minister, Anil Nandlall believes, however, that GECOM is insulated from the Nagamootoo-led COVID-19 Task Force.
Qualifying his assertion, Nandlall said “I am fortified in my views by the crystal language of Article 226 (1) of the Constitution “…in the exercise of its functions under this Constitution, a Commission shall not be subject to the direction or control of any person or authority.” GECOM is one of the Commissions to which this Article applies”.
The former Legal Affairs Minister, under the previous People’s Progressive Party Administration, said “it is undisputed that the Constitution is the supreme law of Guyana. The doctrine of constitutional supremacy mandates that any law, by-laws, regulations, guidelines or any decision or action made by any public authority, or any Government or State agency which is inconsistent with and contrary to the Constitution, renders it unconstitutional, unlawful, null, void and of no effect.”
As such, the former Attorney General and practicing attorney-at-law said: “in so far as the Task Force purports to regulate the work of the Commission, it is unlawful and unconstitutional.”
Nandlall noted also that the Task Force, headed by a “politically contaminated person who has a vested interest in thwarting the recount, compounds the illegality.”
According to Nandlall, “as Mr David Granger so often reminds us, GECOM is an independent, functionally autonomous constitutional body, with exclusive authority over the conduct of all aspects of elections in this country. This means that no other person or organisation in this land has any role to play whatsoever in relation to any aspect of the electoral process, unless GECOM permits it.”
Additionally, Nandlall drew reference to the Judiciary as an institution that enjoys similar juridical corpus as GECOM and said that “in recognition of this legal reality, the Judiciary has crafted its own COVID-19 protocols.’
According to Nandlall, “it is in this same jurisprudential vein, that the Court of Appeal, recently, ruled that the high-level Caricom team cannot supervise the recount, since to do so, would be to usurp the functions, as well as, subvert the independence of GECOM, enshrined by the Constitution.”
He posited that “the Chairperson placed the cart before the horse when she sought guidance from the Task Force” and argued, “there is, absolutely, no obligation on GECOM to seek approval from any agency, in relation to the discharge of its functions regarding elections.”
The PPP executive member cautioned “…that the patience of a majority of Guyanese is wearing very thin.”
According to Nandlall, “PPP supporters, in particular, are very fed-up and frustrated. They know that they have won the elections. They are seeing every day, to their infuriation, one clumsy attempt after another, to steal their votes.”
He suggested, “we may not be able to contain them much longer.”
Nandlall in his appeal to the international community, said “we have endured enough” and that “the threats of personal sanctions to those who are deliberately derailing the democratic process in Guyana must now translate into actions, lest it is interpreted by the miscreants as mere bluffs and further embolden them to continue in their fraudulent and illegal design to destroy democracy.”
PPP GECOM Commissioner, Sase Gunraj on Monday expressed similar sentiments, saying “we [GECOM] have no duty or no obligation to seek guidance or clarity or permission from the COVID-19 Task Force…it was always my position that what we needed to do is to inform them of the decision what we have taken and that we intend to implement”.